as: 851 P.2d 1361)
Court of Alaska.
the Matter of the ADOPTION OF F.H., a minor child.
May 14, 1993.
Supreme Court will reverse adoptive placement preference determination
under the Indian Child Welfare Act only if convinced that record as whole
reveals abuse of discretion or if controlling factual findings are clearly
erroneous. Indian Child Welfare Act of 1978, §§ 2
et seq., 4, 25 U.S.C.A. §§ 1901 et seq., 1903.
of discretion" in connection with adoptive placement reference determination
by superior court, is established if court considered improper factors
or improperly weighed certain factors in making its determination. Indian
Child Welfare Act of 1978, §§ 2 et seq., 4, 25 U.S.C.A.
§§ 1901 et seq., 1903.
there is good cause to deviate from adoptive placement preference, in particular
case, depends on factors including, but not necessarily limited to, best
interests of child, wishes of biological parents, suitability of persons
preferred for placement and child's ties to tribe. Indian Child
Welfare Act of 1978, §§ 2 et seq., 4, 25 U.S.C.A. §§ 1901
et seq., 1903.
cause existed to deviate from Indian Child Welfare Act preference that
Indian children be adopted by Indians, and to support adoption by non-Indians;
child's natural mother wished to have non-Indians adopt child; there
was bonding between non-Indian and child; there was need for permanent
placement which would not have been satisfied if non-Indian couple had
been rejected and natural mother had withdrawn her conditional relinquishment
of custody in favor of them, and proposed adoption would be open, with
natural mother having visitation rights. Indian Child Welfare Act
of 1978, §§ 2 et seq., 4, 25 U.S.C.A. §§ 1901
et seq., 1903.
*1362 Don Clocksin, Wagstaff, Pope & Clocksin, Anchorage, for appellant
Native Village of Noatak.
Richard P. Sullivan, Jr., Asst.
Atty. Gen., Anchorage, and Charles E. Cole,
Atty. Gen., Juneau, for State of Alaska, Div. of Family and Youth Services.
Mary Ellen Ashton, Ashton &
Dewey, Anchorage, for appellees Nancy Hartley and Carol Hartley.
R. Scott Taylor, Rice, Volland
and Gleason, P.C., Anchorage, for appellee E.P.D.
Before MOORE, C.J., and RABINOWITZ,
BURKE, MATTHEWS and COMPTON, JJ.
The Native Village of Noatak
(Noatak) and the State of Alaska, Division of Family and Youth Services
(DFYS), opposed the adoption of F.H., an Indian child, by the Hartleys,
a non-Indian couple. Superior Court Judge Elaine M. Andrews
determined that F.H.'s case presented good cause to deviate from the Indian
Child Welfare Act (ICWA) adoptive placement preferences. Noatak
and DFYS appeal this determination.
I. FACTUAL AND PROCEDURAL BACKGROUND
F.H. was born on February 24, 1990. Her mother, E.P.D., had
a blood alcohol level
of about .275 at the time of birth. F.H.'s biological father
is unknown. F.H. is an Indian child as defined by ICWA. 25
U.S.C. § 1903. She and her mother are members of the Native
Village of Noatak.
DFYS took custody of F.H. shortly
after her birth, based on her mother's homelessness and high blood alcohol
level at the time of birth. DFYS filed a Child in Need of
Aid (CINA) petition (3AN-90-159) and notified Noatak. DFYS
filed a petition to terminate parental rights in August 1990. [FN1]
The CINA proceeding was briefly consolidated with the adoption proceeding.
That consolidation was vacated and the adoption trial was
held first. The CINA petition was dismissed when the Hartleys'
petition for adoption was granted.
F.H. has experienced a number
of medical problems, symptomatic of Fetal Alcohol Syndrome (FAS) or Fetal
Alcohol Effects (FAE). The Alaska Area Native Health Service
has determined that F.H. does not have FAS, but is at high risk for FAE,
which is not as severe. Her prenatal exposure to alcohol has
placed her at risk for developmental delay and learning and behavioral
F.H. lived in four different
foster homes before she was adopted by the Hartleys in March 1992. The
Hartleys were her third foster placement. F.H. lived with
them from June 1990 until June 1991, when Carol Hartley was transferred
to Washington State. F.H. now lives with the Hartleys in Kennewick,
While F.H. was in foster homes,
E.P.D. expressed an interest in relinquishing her custody to at least
five different people, including her cousin, Mary Penn, and the Hartleys.
As E.P.D.'s cousin, Mary Penn is a first place adoptive placement
preference under ICWA. 25 U.S.C. § 1915(a). Based
upon a favorable home study, DFYS concluded that F.H. should be placed
with Mary Penn, though F.H. never lived with her. Trial on
the petition to terminate parental rights was set for September 18, 1991.
On September 16, E.P.D. executed
three documents before Probate Master Lucinda McBurney relinquishing her
parental rights to the Hartleys. Her relinquishment was conditioned
upon the Hartleys' adoption of F.H., F.H.'s retention of inheritance rights
from E.P.D., and E.P.D.'s and her family's retention of contact and visitation
rights with F.H. The next day, the Hartleys filed a Petition
for Adoption. Since signing the papers, E.P.D. has consistently
supported an adoption by the Hartleys.
E.P.D. has not been to Noatak
for several years and plans never to return. She abuses alcohol.
Her father died of alcoholism. Her mother was
murdered by her brother. None of her siblings were raised *1363 in Noatak. F.H. has never been to Noatak. E.P.D.
believes she could visit F.H. more easily in Kennewick, Washington, than
An early interventionist, who worked with F.H. in the Hartleys' home twice
a month for almost one year, believes F.H. made a lot of progress during
that period and that F.H.'s bond with Nancy Hartley is the best F.H. will
ever have. Both guardians ad litem assigned to F.H. testified
that they believe F.H.'s best interest is to be placed with the Hartleys.
The DFYS social worker assigned to F.H.'s case until June
1991 believed that F.H. should have stayed with the Hartleys.
After several hearings at which
Noatak, [FN2] E.P.D., the Hartleys, DFYS, and F.H. were represented, Probate Master
John E. Duggan recommended that the superior court find good cause to
deviate from ICWA preferences. The primary basis for his recommendation
was the "strong and consistent preference of the biological mother
for this open adoption by the petitioners and against placement of her
daughter in the village of Noatak." Secondary considerations
included 1) the bond between Nancy Hartley and F.H., 2) the uncertainty
of F.H.'s future if the adoption were not allowed, and 3) the "open
adoption" petition allowing E.P.D. access to F.H. and possibly giving
F.H. exposure to her Native American heritage.
The Hartleys assert that Noatak's opposition to their adoption is barred
by the doctrine of laches. Noatak was sent notices of F.H.'s
CINA case in March and August 1990. In October 1991 Noatak
of the Hartleys' adoption petition and only then moved to intervene in
both the adoption and the CINA cases. Alaska Adoption Rule
12(a) states that "[i]n any adoption or relinquishment proceeding
involving an Indian child, the Indian child's tribe and an Indian custodian,
if any, may intervene as a matter of right at
any stage in the proceeding."
(Emphasis added). In light of this rule, it is doubtful
laches may be raised as a defense to intervention "at any stage in
the proceeding." In view of our decision on the merits,
we need not address laches.
Judge Andrews accepted Master
Duggan's recommendation. Judge Andrews stressed the importance
of the mother's preference, which was based in part on the adoption of
F.H. being "open." E.P.D. retained contact and visitation
rights, while F.H. retained her inheritance rights from E.P.D. In
contrast, "[t]here is no written evidence suggesting that the proposed
Penn adoption would be 'open.' "
In support of its Motion for
Reconsideration, Noatak submitted the affidavit of Mary Penn and an excerpt
from a study of Northwest Alaskan Family traditions to show that E.P.D.
and others in F.H.'s blood family would have access to F.H. if she lived
with Mary Penn. Judge Andrews denied the motion.
Superior Court Judge Brian C.
Shortell conducted a hearing on the remaining issues. He granted
the Decree of Adoption on March 5, 1992. This appeal followed.
A. Standard of Review
The question on appeal is whether
the superior court erred in concluding that good cause existed to deviate
from the adoptive placement preferences mandated under ICWA (25 U.S.C.
§§ 1901-1963). Under state law, the Hartleys
have the burden of proof by a preponderance of the evidence that there
is good cause for allowing a non-preferred placement. Alaska
Adoption Rule 11(f). A good cause determination is within
the superior court's discretion. See
In re Adoption of M., 66 Wash.App. 475, 832 P.2d 518, 522-23 (1992); In
re Appeal in Coconino County Juvenile Action No. J-10175, 153 Ariz. 346, 349-50, 736 P.2d 829, 832-33 (App.1987). We
will reverse an adoptive placement preference determination only if convinced
that the record as a whole reveals an abuse of discretion or if controlling
factual findings are clearly erroneous. Farrell
v. Farrell, 819 P.2d
896, 898 (Alaska 1991). Abuse of discretion is established
if the superior court considered improper factors or improperly weighted
certain factors in making its determination. See
there is good cause to deviate in a particular case depends on many factors
including, but not necessarily limited to, *1364 the best interests of the child, the wishes of the biological parents,
the suitability of persons preferred for placement and the child's ties
to the tribe. In
re Adoption of M., 832 P.2d at 522.
B. Good Cause Determination
ICWA was enacted to discourage
the separation of Indian children from their families and tribes through
adoption or foster care placement to non-Indian homes. 25 U.S.C.
§ 1901; Mississippi
Band of Choctaw Indians v. Holyfield, 490 U.S. 30, 36, 109 S.Ct. 1597, 1601, 104 L.Ed.2d 29 (1989). Congress
found that no resource "is more vital to the continued existence
and integrity of Indian tribes than their children." 25 U.S.C.
§ 1901(3); Holyfield, 490 U.S. at 38, 109 S.Ct. at 1603. In order "to protect
the best interests of Indian children and to promote the stability and
security of Indian tribes and families," Congress established minimum
federal standards for the placement of Indian children in foster or adoptive
homes. 25 U.S.C. § 1902.
ICWA provides preferences in
placing Indian children for adoption.
any adoptive placement of an Indian child under State law, a preference shall be given, in the absence of good cause to
the contrary, to a placement with (1) a member of the child's extended
family; (2) other members of the Indian child's tribe; or
(3) other Indian families.
25 U.S.C. § 1915(a). ICWA does not define
"good cause." [FN3]
Noatak's argument that the three ICWA preferential placements must
be rejected before consideration of an alternative ignores the "good
Master Duggan found good cause
to deviate from ICWA's preferences. The factual bases upon
which Master Duggan made his determination were E.P.D.'s preference for
the Hartleys, the bond between Nancy Hartley and F.H., the uncertainty
of F.H.'s future if the adoption were not allowed, and the "openness"
of the Hartleys' adoption.
1. Maternal Preference.
a hearing in which the terms and consequences were fully explained to
her, E.P.D. signed three documents relinquishing her parental rights on
condition that the Hartleys adopt F.H. Four months later,
at a hearing in front of Master Duggan, E.P.D. testified that she wanted
F.H. to be adopted by the Hartleys.
Noatak argues that under Holyfield, parental preference cannot defeat the interests of the tribe. In Holyfield, the United States Supreme Court held that parents can not defeat tribal
jurisdiction by giving
birth off a reservation. Id. at 53, 109 S.Ct. at 1610. Since jurisdiction is not an issue
in this case, Holyfield is not apposite.
ICWA states, with regard to the
order of the preferences, "[w]here appropriate, the preference of
the Indian child or parent shall be considered."
25 U.S.C. § 1915(c). The Bureau of Indian
Affairs publication "Guidelines for State Courts; Indian Child
Custody Proceedings" (Guidelines) provides that good cause not to
follow the order of preference may be based on parental preference. 44
Fed.Reg. 67584, § F.3 (1979). Although the Guidelines
do not have binding effect, this court has looked to them for guidance.
In re L.A.M., 727 P.2d 1057, 1060 n. 6 (Alaska 1986). ICWA and the Guidelines
indicate that courts may consider parental preference when determining
whether there is good cause to deviate from ICWA preferences. E.P.D.'s
preference for the Hartleys was an appropriate factor for the superior
court to consider in its finding of good cause.
Noatak argues that even if a
mother's preference constitutes good cause to deviate from ICWA placement
preferences, E.P.D.'s relinquishment should be given little weight since
it was neither reasonable nor knowledgeable. [FN4]
E.P.D. had offered to relinquish F.H. to several different people, *1365 including Mary Penn. At least once she adamantly opposed placement
with the Hartleys. She admitted that when she signed the relinquishment
to the Hartleys she was so mixed up she would have signed anything. Noatak
argues that E.P.D.'s decision was based in part on her belief that F.H.
had serious health problems.
DFYS argues that E.P.D.'s decision to relinquish to the Hartleys should
be set aside. A party generally "may not present new
issues or advance new theories to secure a reversal of a lower court decision." Zeman v. Lufthansa German
Airlines, 699 P.2d
1274, 1280 (Alaska 1985). Since this issue was first raised on appeal,
we will not reach it.
However, Master McBurney certified
that E.P.D. understood and voluntarily signed the documents. Since
signing them, E.P.D. has consistently supported an adoption by the Hartleys.
E.P.D. gave several reasons she would not want to return to
Noatak or have her daughter raised there. The finding that
E.P.D. preferred that the Hartleys adopt F.H. was not clearly erroneous.
2. Bond between Nancy Hartley
Both guardians ad litem testified to a strong bond between Nancy Hartley
and F.H. An early interventionist stated that F.H.'s bond
with Nancy Hartley is the best she will ever have. Bonding
between Nancy Hartley and F.H. was a proper factor for the superior court
to consider. The finding of bonding was not clearly erroneous.
3. F.H.'s Need for Permanent Placement.
Master Duggan recognized that F.H.'s situation would be uncertain if the
Hartleys' adoption petition were dismissed and E.P.D. withdrew her conditional
relinquishment. E.P.D.'s relinquishment was conditional on
the Hartleys' adoption of F.H. If the Hartleys' adoption petition
were dismissed, F.H. would
have continued to be in DFYS' temporary custody. DFYS' petition
to terminate permanently E.P.D.'s parental rights had not been granted.
No other petition to adopt F.H. had been filed. Although
DFYS expressed an intent to place F.H. with Mary Penn immediately, further
legal proceedings would have been necessary for a permanent adoption by
Mary Penn. The superior court properly considered F.H.'s situation
if the adoption petition were dismissed. It was not clearly erroneous
for the superior court to find that F.H.'s uncertain situation would have
continued if the Hartleys were not allowed to adopt F.H.
4. Openness of Hartley Adoption.
Master Duggan and Judge Andrews found that an adoption by the Hartleys
would be open, since E.P.D. and her family would have access to F.H. Noatak
argues that an adoption by Mary Penn would ensure access to F.H. by E.P.D.
and other relatives. E.P.D. testified that she could visit
F.H. more easily in Kennewick, Washington than in Noatak. The
finding that an adoption by the Hartleys would be open was not clearly
erroneous and was a proper factor for the superior court to consider.
Given the possibility of a placement with a relative in Noatak, this case
presented a close question to the superior court. However,
the factual findings which supported deviation from ICWA preferences are
not clearly erroneous.
Further, they address factors which are proper to consider
in determining whether good cause exists to deviate from the preferences.
The record as a whole reveals no abuse of discretion. Therefore,
the order approving Master Duggan's finding of good cause is AFFIRMED
and the decision to grant the Hartleys' Petition for Adoption is AFFIRMED.
851 P.2d 1361